The articles of agreement of November 20, 1862, between the secretary of the interior and the Great Falls Manufacturing Company made ample provision for the protection of the public interests; for the right was reserved to the party dissatisfied to proceed by suit in equity in the proper court of this district for the purpose of having the award set aside or changed, and of obtaining such a decree, subject to review by this court, as was just and equitable. There is no doubt of the good faith of the effort of the parties to accommodate their differences, or that it was of the highest importance to the government that the obstacles should be be removed to the successful completion of the work, upon which large sums had been expended. In the opinion of the court below, and in the arguments of counsel, the authority of the secretary of the interior to make the government a party to that agreement is discussed; but, in the view we take, it is unnecessary to determine that question. Our decision may be satisfactorily placed on other grounds.
From the report and documents transmitted to congress by President Fillmore it appears that, in the judgment of the engineer department, the best mode of supplying the cities of Washington and Georgetown with wholesome water was by an aqueduct from the Great falls of the Potomac; also, that such a plan necessarily involved the construction of a dam at that point in the river. Ex. Doc. (Senate) No. 48, pp. 2, 35, 48, 32d Cong. 2d Sess. By the annual report, under date of December 4, 1863, of Mr. Usher, secretary of the interior, congress was informed that 'certain parties having from time to time made claim to heavy damages for the diversion of the water from the Potomac river,' his immediate predecessor, 'with a view to settle and end this claim, entered into an agreement of arbitration with the claimants.' The parties referred to were the present claimants, as appears by the agreement of arbitration, by the official documents submitted to congress, and by the proceedings in the courts of Maryland for an assessment of the damages which the proposed dam should cause to the Great Falls Manufacturing Company. The secretary said: 'Pursuant to this agreement, the arbitrators met from time to time, and finally submitted their award, by which they adjudged in favor of the claimants upon each and all of the plans and modes submitted to them, being three [four] in number, for the construction of the dam across the Potomac, and also $12,000 for their own fees as arbitrators, and $761.84 for the expenses of arbitration. The sums being large, I did not feel justified in applying the the existing appropriation for the completion of the aqueduct to the payment thereof, preferring to submit the whole matter to congress for its determination. It appears from the report of the experienced engineer in charge of the work, as must be obvious to every observer, that an ample supply of water for the use of the cities of Washington and Georgetown, for many years to come, can be obtained from the Potomac by the erection of a tight dam, extending from the Maryland shore to Conn's island, to a height which will give a head of six feet in the aqueduct, and yield a daily supply of 65,000,000 gallons,' etc. After expressing the opinion that such a dam could not work injury to the proprietors of the water-rights claimed at the Great falls, the secretary recommended that a reasonable sum be appropriated to pay the expenses of the arbitration, and that the cost previously estimated of a dam across the main channel be diminished to that of the proposed dam over the east channel.